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Johnson v. Bradley

Court of Appeals of Arkansas, Divisions II, III

October 2, 2019



          Wright, Lindsey & Jennings LLP, by: David P. Glover, Gary D. Marts, Jr., and David C. Jung, for separate appellant Dr. Michael Johnson.

          Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Michelle L. Browning and Jason T. Browning, for separate appellants Arkansas Methodist Hospital Corporation and Bill Wagner.

          Wilcox Law Firm, by: Tony L. Wilcox; and Scholtens & Averitt, PLC, by: Chris A. Averitt, for appellees.

          BART F. VIRDEN, Judge.

         Ashley Bradley and Corey Hunt, special co-administrators of the Estate of Trey Jordan Hunt (Estate), initiated a medical-malpractice action as a result of the death of their infant son Trey. Appellants Michael Johnson, M.D., Bill Wagner, R.N., and Arkansas Methodist Hospital Corporation appeal the Greene County Circuit Court's decision to strike portions of their amended answers in which they sought to allocate fault to a nonparty, the infant's mother, Ashley.

         I. Facts and Procedural History

         On August 22, 2016, three-month-old Trey Hunt was taken to the emergency room by his mother at 4:00 a.m. due to a very high fever, an elevated heart rate, and irritability. Dr. Johnson treated Trey, his fever came down, and he was discharged at 5:48 a.m. Ten hours after Trey's discharge, Arkansas Methodist Hospital's lab notified its nurse, Wagner, that the lab tests revealed that Trey had streptococcus pneumoniae, bacteria that can cause meningitis and presents a life-threatening emergency if not treated in a timely fashion. Neither Arkansas Methodist Hospital, nor Wagner, nor Dr. Johnson notified Trey's parents of the lab results. Trey became very ill two days later, and his family took him back to the emergency room on August 24, 2016, due to fever and because he had stopped breathing. Trey was transferred to Le Bonheur Hospital in Memphis where he was diagnosed with streptococcus pneumoniae and meningitis, and he died on August 27, 2016.

         The Estate filed a complaint for medical negligence against appellants on February 9, 2017, alleging that Trey should not have been discharged and that appellants should have been more diligent in their efforts to contact Trey's family to advise them of the life-threatening medical emergency and instruct them to return to the emergency room.

         Appellants' answers were filed in March 2017 and included a litany of affirmative defenses, including comparative fault, intervening cause, act of God, and the obvious-danger rule. When raising these defenses, the attorneys were required to have good-faith legal and factual bases.[1] Scheduling orders set the case for trial beginning on August 20, 2018, and set deadlines for expert-witness disclosures (May 18, 2018, for plaintiffs and June 29, 2018, for defendants), plaintiffs' expert-witness depositions (June 8, 2018), and defendants' expert-witness depositions (July 20, 2018).

         At Ashley's deposition on November 28, 2017, she was shown a medical record stating that Trey was to follow up with a family physician "today" (the day she initially took him to the emergency room), and Ashley testified that Dr. Johnson had told her to take Trey for a checkup but that she had not made Trey an appointment because he was feeling better. On December 15, 2017, Dr. Johnson was deposed and stated that if Trey had continued to be ill after his ER visit, he would have expected Ashley to take him to the doctor's office as directed and that he was "really frustrated" with Ashley because of the inability to get in touch with her. It was undisputed that Dr. Johnson opined that Trey's condition could have been easily fixed if it had been timely and appropriately treated.

         Dr. Loren Crown (the Estate's expert) was deposed on May 22, 2018, and he testified that if Ashley had taken Trey to his doctor or back to the ER at any point between Monday at 6:00 a.m. and Wednesday at noon, the outcome could have been different. Further, Dr. Steven Shore (the Estate's expert) was deposed on June 21, 2018, and testified that he believed Trey could have survived if he had received the crucial antibiotic before 7:00 a.m. on August 24, the day that his family brought him back to the ER.

         On July 20, 2018, appellants filed separate amended answers, providing notice that they intended to seek to apportion fault to Ashley, Trey's mother, in her individual capacity pursuant to Ark. R. Civ. P. 9(h) naming her as a nonparty at fault in that her failure to follow up with a doctor as instructed was the proximate cause of Trey's death. The Estate filed a "Motion to Strike Defendants' Untimely Amended Answers" on August 6, 2018.

         At a hearing on the same day, the trial court noted that the defense's argument that Ashley's failure to take Trey to the doctor could be an intervening cause and would likely be made to the jury regardless of whether the motion to strike was granted.[2] The trial court also found that it would be prejudicial to allow the amended answers one month before the eight-day trial in that Ashley is a nonparty, is the mother in her individual capacity, and is currently representing the Estate as co-administrator, which would potentially require counsel to be realigned and divided between Ashley as an individual and as co-administrator of the Estate. In granting the motion to strike, the trial court was not persuaded that the expert-witness depositions provided the exact moment that the defense acquired the appropriate factual and legal bases to recognize that they needed to seek to allocate fault to the mother. The trial court also found that the facts in the case were well known in advance of that date; thus, notice could have been provided in a more timely fashion. Neither the appellants nor the Estate requested a continuance before the trial court's ruling on the amended answers, and the trial court denied a motion for continuance by the appellants that was made after the motion to strike had been granted.

         II. Standard of Review

         Our well-established standard of review is that we will not reverse a trial court's decision allowing or denying amendments to pleadings absent a manifest abuse of discretion. Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393, 430 S.W.3d 29. A court commits an abuse of discretion when it acts thoughtlessly, improvidently, or without due consideration. Ramsey v. Dodd, 2015 Ark.App. 122, 456 S.W.3d 790.

         III. Discussion

         Appellants argue that the trial court abused its discretion in striking their amended answers because the amended answers were filed in accordance with the rules, and when the amended answers were filed, they had only just discovered the legal basis of their amended answers, which sought to allocate nonparty fault to Ashley. Furthermore, appellants argue that the trial court abused its discretion in striking the amended answers because the answers posed no prejudice or threat of undue delay.

         Arkansas Rule of Civil Procedure 9(h) addresses allocation of nonparty fault and notice and creates the exclusive procedural mechanism for asserting the right to an allocation of nonparty fault created by Ark. Code Ann. § 16-61-202(c) (Supp. 2017). Under Ark. R. Civ. P. 9(h)(2), notice must be given in the original responsive pleading "if the factual and legal basis upon which fault can be allocated is then known" or in an amended or supplemental pleading under Ark. R. Civ. P. 15. The former provisions of Ark. Code Ann. § 16-55-202 required that notice be given no later than 120 days before the trial date, but Ark. R. Civ. P. 9(h)(2) contains no deadline. Although Ark. R. Civ. P. 15 allows amended and supplemental pleadings, the court may, on motion, strike the amended or supplemental pleading or grant a continuance if it determines that "prejudice would result or the disposition of the cause would be unduly delayed."

         Appellants' contention that both the factual and legal bases were unknown until the completion of discovery in the days leading up to the filing of the amended answers is not substantiated by the record. Ashley's own deposition in the initial phases of discovery revealed that she failed to follow Dr. Johnson's written discharge instruction to take Trey for a follow-up doctor visit later that day, and Dr. Johnson's deposition the next month underscored this premise. The trial court found that the circumstances prior to the May 2018 expert-witness depositions, specifically, the hospital's own medical records with respect to Ashley's instructions to follow up with the doctor, constituted the requisite factual and legal bases under Rule 9(h)(2) upon which fault could be allocated. Being unpersuaded that the expert depositions were the exact moment that appellants had the appropriate factual and legal bases to recognize the need to seek an allocation of nonparty fault against the mother, the trial court found that the facts were known well in advance of that date and that notice could have been provided in a much more timely manner.

         The trial court declined to impose a requirement that the legal basis to assert the fault of another person-a layperson-must be established by expert testimony, and we likewise decline to impose this requirement. To do otherwise, as suggested by the dissent, would "elevate" contributory negligence or intervening causation to a claim for medical negligence against nonmedical personnel. Neither the legislature nor the courts have done so, and we decline to do so now. The trial court did not abuse its discretion by finding that the legal basis of an allegation of nonparty fault against Ashley could be borne out of her own testimony ...

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